Noncustodial sentence for manslaughter of Mhelody Bruno reflects societal misconceptions around “rough sex”

At Doctor’s Against Violence Towards Women, we are horrified by the leniency of the sentence Rian Ross Toyer received for the manslaughter of Filipina transgender woman, Mhelody Bruno. Correctly, the case has now been referred for re-sentencing next week, because an Intensive Correction Order cannot be legally imposed for the charge of manslaughter.

However, the fact that Justice Lerve thought that such an order was sufficient in the first place is evidence of larger societal issues. In particular, the increasing use of “consensual rough sex” as a defence for men in homicide cases, which allows men to avoid scrutiny for violent acts. Moreover, it reflects a tendency to minimise and dismiss violence against women, particularly transgender women.

Justice Lerve sentenced Toyer to a 22-month Intensive Correction Order, with conditions including community service, and with a reduction in sentencing due to a guilty plea. Cited reasons for the sentence include that Ms Bruno “not only consented to the act of choking but actually instigated it … [the first time the couple] had sex”, that the “choking had been committed in the course of a consensual sexual act” and that the matter was “at the lower end of the scale of seriousness.”

Not serious?

For us, it is always serious when the “consensual rough sex” defence is used for the murder of a woman. The normalisation of violent sexual practices through exposure to porn and sensationalised media, has led to a rise in the “rough sex” defence in homicide cases.

Yet. we know from research by the UK based campaign group, “We Can’t Consent to This”, that the “rough sex” defence is being used by men with a known history of domestic abuse. This group surveyed 82 victims of nonfatal assaults. Where the woman is alive and able to testify, every single one said that they did not consent to the violence.

The “We Can’t Consent to This” group argue that rough sex often occurs within a pattern of coercive control and abuse. Professor Elizabeth Yardley, a criminologist from Birmingham City University, sees the “rough sex” defence as a contemporary variation on the traditional “crime of passion defence” that allows men to get away with killing women due to momentary loss of control.

Ominously, non-fatal strangulation is one of the strongest risk factors for future domestic homicide. By letting men “get away with it”, we provide a benefit of the doubt for men, while risking cis and transgender women’s lives.  

In the UK, there are amendments to the domestic abuse bill in development, hoping to invalidate the defence of consent when the victim suffers serious harm or is killed. After all, how does someone consent to be killed?

Why aren’t we following a similar path in Australia?

It comes down to the value of a woman’s life.

In this case, the value of a transgender Filipina woman’s life.

As a transgender woman, Mhelody was at a higher risk of sexual violence than cisgender women. In fact, as a transgender woman of colour she was at 10 times the risk of sexual assault. She was also a 25 year old woman on vacation in Australia, valued by friends and family in the Philippines. Yet according to Justice Lerve, the loss of Mhelody’s life was not worth a custodial sentence.

In comparison, data from the Sentencing Advisory Council of Victoria shows that for the offence of culpable driving causing death, 92% of perpetrators received a custodial sentence between 2013 and 2018, with a mean sentence length of 5-7years.

Presumably, most of these cases of driving causing death were tragic accidents, caused by recklessness, negligence or intoxication. Why is recklessness or negligence during sex less serious?

It isn’t easy to kill someone via strangulation. As doctors, we know that it requires considerable force and persistence. Critical care doctors in our group doubt that it can be truly accidental. In the BDSM scene, safety and consent during “breath play” is taken very seriously. It is not accepted that a practitioner could strangle their partner for a while, without noticing that they were unconscious.

What experts did Justice Lerve consult prior to passing his sentence?

Did he consider the broader implications of the sentence, or merely the impact on Toyer?

Justice Lerve’s sentence for Rian Ross Toyer is a reflection of our society’s tendency to victim blame and minimise violence against women, especially transgender women. The defence of “rough sex” allows abusive men to get away with coercive, controlling violence and reflects a misunderstanding of the BDSM subculture.

The re-sentencing next week is an important step in correcting this gross miscarriage of justice. However, in Australia, we must follow the UK in declaring the “rough sex” defence invalid in the case of serious harm or death. This is an essential step to ensure justice is served for victims, such as Mhelody. In the interim, I would suggest Sydneysiders attend the rally at Town Hall on Monday, to join our voices with Anakbayan Sydney and Migrante New South Wales in demanding justice for Mhelody.